S.M. Donahue v. SCSC (DHS) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean M. Donahue, :
Petitioner :
:
v. : No. 296 C.D. 2020
: SUBMITTED: January 29, 2021
State Civil Service Commission :
(Department of Human Services), :
Respondent :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: April 22, 2021
Sean M. Donahue petitions for review, pro se, of the February 21, 2020 Order
of the State Civil Service Commission (Commission) dismissing his appeal and
sustaining the action of the Department of Human Services (DHS) in not selecting
him for the position of Income Maintenance Caseworker in DHS’s Lackawanna
County Assistance Office. We affirm the Commission’s Order.
Background
DHS posted a job position for an Income Maintenance Caseworker from April
6, 2018 through April 16, 2018 (April 2018 position). The civil service list for the
April 2018 position was closed without the position being filled.
DHS posted a job position for an Income Maintenance Caseworker from July
12, 2018 through July 27, 2018 (July 2018 position). The posting for the July 2018
position contained a hiring preference for eligible candidates who reside in
Lackawanna County.1 The July 2018 position was filled externally using both a civil
1
The July 2018 job posting stated in relevant part:
service list and a veterans list. Both lists DHS used to fill the July 2018 position
included only candidates who reside in Lackawanna County.
Mr. Donahue applied for the July 2018 position. Mr. Donahue’s name was
not on either the civil service or the veterans list for the July 2018 position because
he does not reside in Lackawanna County. There was only one veteran on both the
civil service and veterans lists for that position, but he later withdrew from
consideration. After the veteran withdrew from consideration, DHS selected a non-
veteran from the civil service list. The selected candidate resides in Lackawanna
County.
On August 31, 2018, Mr. Donahue filed an appeal with the Commission,
challenging his non-appointment to the July 2018 position. In his appeal, Mr.
Donahue averred, “I wasn’t hired so my veterans preference wasn’t honored.” N.T.,
1/24/19, Ex. A. The Commission later expanded the scope of Mr. Donahue’s appeal
to also include his non-selection for appointment to the April 2018 position. See
Record (R.) Item Nos. 8, 9; Comm’n Adjudication, 2/21/20, at 5 n.1.2
The Commission held an evidentiary hearing on January 24, 2019. Joseph
Tomaselli, Executive Director of DHS’s Lackawanna County Assistance Office,
testified on DHS’s behalf. Mr. Donahue, appearing pro se, testified on his own
Hiring preference for this vacancy will be given to candidates who live within
Lackawanna County. If no eligible candidates who live within Lackawanna County
apply for this position[,] candidates who reside in other counties may be considered.
Notes of Testimony (N.T.), 1/24/19, Ex. AA-1.
2
DHS objected to expanding the scope of the appeal to include the April 2018 position at
the January 24, 2019 hearing and in a subsequent written motion filed with the Commission. See
R. Item No. 11. The Commission, however, denied DHS’s motion. Comm’n Adjudication,
2/21/20, at 5 n.1. DHS does not challenge that ruling on appeal.
2
behalf and also presented the testimony of Janet Norton, DHS’s Field Human
Resources Officer.
At the conclusion of Mr. Donahue’s case-in-chief, DHS orally moved to
dismiss the appeal, arguing that Mr. Donahue had failed to satisfy his burden of
proving a prima facie case of discrimination or a violation of Section 7104(b) of the
statute commonly known as the Veterans’ Preference Act, 51 Pa. C.S. § 7104(b).3
N.T., 1/24/19, at 102-03. The Commission declined to rule on the motion at that
time, stating that it would rule on the motion in its subsequent written adjudication,
after the parties had submitted supporting briefs. Id. at 103-04. Following the
hearing, both parties filed post-hearing briefs with the Commission.
On February 21, 2020, the Commission dismissed Mr. Donahue’s appeal,
concluding that he failed to meet his burden of proving discrimination in violation
of Section 905.1 of the former Civil Service Act.4 First, the Commission rejected
3
Section 7104(b) of the Veterans’ Preference Act provides:
Whenever a veteran’s name appears on an eligible list certified [by the
Commission] or provided as the result of a civil service examination, the appointing
authority in making an appointment to a public position shall give preference to
the veteran, notwithstanding the veteran’s standing on the eligible list if the
appointment is otherwise made in accordance with 71 Pa.[]C.S. § 2402 (relating to
selection and appointment of eligibles). A veteran may not begin or hold the public
position until proof of discharge papers, separation documents or statement of
service are provided to the appointing authority.
51 Pa. C.S. § 7104(b) (emphasis added).
4
Act of August 5, 1941, P.L. 752, as amended, added by the Act of August 27, 1963, P.L.
1257, formerly 71 P.S. § 741.905a. Section 905.1 of the former Civil Service Act provided:
No officer or employe of the Commonwealth shall discriminate against any person
in recruitment, examination, appointment, training, promotion, retention or any
other personnel action with respect to the classified service because of political or
3
Mr. Donahue’s assertion that DHS closed the civil service list for the April 2018
position and “re-posted” it in July 2018 with a county residency requirement to avoid
hiring him. The Commission determined:
[Mr. Donahue] suggested the April 2018 civil service list was closed to
avoid hiring him for the April 2018 position. Later, [he] insinuated the
April 2018 civil service list was closed to avoid hiring him for the July
2018 position. There is no credible evidence to support either of these
claims. Specifically, other than [Mr. Donahue’s] own speculation,
there is no evidence the April 2018 position was never filled to avoid
having to consider [him] as a candidate, nor is there any evidence the
April 2018 civil service list was closed to avoid applying veterans’
preference when selecting the candidate for the July 2018 position.
Comm’n Adjudication, 2/21/20, at 12 (internal citations omitted) (emphasis added).
Second, the Commission found that Mr. Donahue failed to establish that DHS
violated the Veterans’ Preference Act by not hiring him for the July 2018 position.
The Commission concluded:
Since [Mr. Donahue] is not a Lackawanna County resident, he was not
eligible for [the July 2018] position, and thus, his name did not appear
on the lists used to fill the position. There was one veteran on the civil
service and veterans lists, but he withdrew from consideration.
religious opinions or affiliations[,] because of labor union affiliations[,] or because
of race, national origin or other non-merit factors.
Formerly 71 P.S. § 741.905a. Section 951(b) provided that any person who is aggrieved by an
alleged violation of Section 905.1 may appeal in writing to the Commission within 20 calendar
days of the alleged violation. Formerly 71 P.S. § 741.951(b).
The General Assembly repealed the Civil Service Act by the Act of June 28, 2018, P.L.
460, which became effective on March 28, 2019. The provisions of the former Civil Service Act
are now found in Title 71, Part III, of the Pennsylvania Consolidated Statutes, commonly known
as the Civil Service Reform Act. Because Mr. Donahue challenges hiring decisions that were
made before the Civil Service Act’s repeal date, we apply the former Civil Service Act’s provisions
to this case.
4
Therefore, a non-veteran Lackawanna County resident was selected
from the civil service list. Since [DHS] considered the veteran who
appeared on the lists, it complied with veterans’ preference. Veterans’
preference does not require the appointing authority to change the
hiring preferences when a veterans list for a hiring action has been
exhausted.
Id. at 13 (internal citations omitted).
Finally, the Commission rejected Mr. Donahue’s contention that DHS used
“county preference” as a pretext to avoid hiring a veteran for the July 2018 position,
finding “no credible evidence that [DHS] imposed a residency hiring preference to
avoid selecting a veteran since a veteran was considered for the position.” Id.
(emphasis added). In concluding that Mr. Donahue failed to meet his burden of
proving a prima facie case of discrimination, the Commission stated:
[W]e find [that DHS] provided a legitimate, non-discriminatory
explanation for not selecting [Mr. Donahue] for appointment to the
position of Income Maintenance Caseworker. Both [Mr.] Tomaselli
and [Ms.] Norton credibly testified [that] only Lackawanna County
residents were eligible for the position. Thus, [Mr. Donahue] was not
eligible for the position because he does not reside in Lackawanna
County. [Mr. Donahue] provided no credible evidence that [DHS’s]
merit-related reason was pretextual. Indeed, [Mr.] Tomaselli credibly
explained the reasons for the residency hiring preference. Therefore,
we find [that Mr. Donahue] has failed to establish procedural
discrimination.
Id. at 15 (internal citations omitted) (emphasis added). Mr. Donahue now petitions
this Court for review.5
5
Our review of the Commission’s decision is limited to determining whether constitutional
rights have been violated, whether an error of law has been committed, or whether the
Commission’s factual findings are supported by substantial evidence. Williams v. State Civ. Serv.
Comm’n, 811 A.2d 1090, 1092 n.1 (Pa. Cmwlth. 2002).
5
Analysis
In his Petition for Review, Mr. Donahue requests that DHS “be ordered to
cease and de[s]ist applying ‘county preference’ before veterans[’] preference and
that [DHS] not be allowed to exclude veterans who live outside of Lackawanna
County from consideration for employment within its Lackawanna County offices.”
Pet. for Rev. ¶ 12. In essence, Mr. Donahue argues that DHS’s use of county
eligibility lists for state civil service jobs amounts to discrimination against veterans
in violation of Section 905.1 of the former Civil Service Act. Mr. Donahue also
asserts that by prioritizing county of residence over veterans’ preference in hiring,
DHS unlawfully discriminated against him based on his “birthplace” of Luzerne
County. Donahue Br. at 38.
An individual who appeals his non-selection for appointment to a position in
the civil service may do so only on the basis of discrimination. Price v.
Luzerne/Wyoming Cntys. Area Agency on Aging, 672 A.2d 409, 413 (Pa. Cmwlth.
1996). There are two categories of discrimination under the former Civil Service
Act: “traditional discrimination” and “procedural discrimination.” Daily v. State
Civ. Serv. Comm’n, 30 A.3d 1235, 1239 (Pa. Cmwlth. 2011). Traditional
discrimination is based on factors such as race, sex, national origin, and other non-
merit factors. Id. Procedural discrimination is based on procedural violations of the
former Civil Service Act and its attendant regulations. Id.In this case, Mr. Donahue alleges traditional discrimination, because he claims
that DHS discriminated against him based on non-merit factors, i.e., his status as a
veteran and his county of residence.6 When an appellant claims discrimination under
6
In its decision, the Commission characterized Mr. Donahue’s appeal as a “procedural
discrimination” claim, rather than a “traditional discrimination” claim. Comm’n Adjudication,
6
Section 905.1 of the former Civil Service Act, he bears the burden of demonstrating
a prima facie case of discrimination. See Price, 672 A.2d at 413; 4 Pa. Code §
105.16(a). To establish a prima facie case of traditional discrimination, the appellant
must produce sufficient evidence that, if believed, indicates that it is more likely than
not that discrimination occurred. Moore v. State Civ. Serv. Comm’n (Dep’t of Corr.),
922 A.2d 80, 85 (Pa. Cmwlth. 2007). General and conclusory allegations are
inadequate; rather, the appellant must produce affirmative, factual support for the
alleged discrimination. Allen v. State Civ. Serv. Comm’n, 992 A.2d 924, 929 (Pa.
Cmwlth. 2010).
Mr. Donahue first argues that DHS improperly used a “county preference”
policy to exempt itself from the requirements of the Veterans’ Preference Act,
thereby “discriminat[ing] against veterans for non-merit factors.” Pet. for Rev. ¶ 6.
We disagree.
The plain language of Section 7104(b) of the Veterans’ Preference Act states
that veterans’ preference applies “[w]henever a veteran’s name appears on an
eligible list certified [by the Commission].” 51 Pa. C.S. § 7104(b) (emphasis added);
see also Hous. Auth. of Cnty. of Chester v. State Civ. Serv. Comm’n, 730 A.2d 935,
947 (Pa. 1999) (“[M]andatory veterans’ preference [must] be afforded to any veteran
who is applying for a civil service position and who is on an [e]ligible [l]ist due to
his performance on the civil service examination.”) (emphasis added); Brickhouse v.
Spring-Ford Area Sch. Dist., 656 A.2d 483, 485 (Pa. 1995) (noting that if the veteran
applying for appointment to a position “has the necessary qualifications and is
2/21/20, at 11, 15. Regardless of which type of discrimination is actually alleged, however, Mr.
Donahue had the initial burden of establishing a prima facie case of discrimination, which he did
not do. See Price, 672 A.2d at 413; 4 Pa. Code § 105.16(a).
7
eligible for appointment, he must be given ‘preference’ under the terms of the
[Veterans’ Preference A]ct.”) (emphasis added).
Here, the posting for the July 2018 position contained a hiring preference for
residents of Lackawanna County. The lists provided to DHS and certified by the
Commission contained only the names of eligible candidates who reside in
Lackawanna County. It is undisputed that Mr. Donahue’s name was not on either
the civil service list or the veterans list for the July 2018 position because he is not
a resident of Lackawanna County. Veterans’ preference applies when a candidate is
selected from a certified list of eligibles containing the name of an eligible veteran.
See 51 Pa. C.S. § 7104(b). Because Mr. Donahue’s name did not appear on either
list of eligibles used to fill the July 2018 position, Mr. Donahue failed to establish
that DHS violated the Veterans’ Preference Act by not selecting him for the position.
See Hous. Auth., 730 A.2d at 943 (explaining that the veterans’ preference policy
outlined in the Commission’s management directive “reflect[s] the will of the
legislature that veterans be given mandatory preference in appointment when their
names appear together with those of non-veterans on a list of eligibles”) (emphasis
added).
With regard to the April 2018 position, Mr. Donahue baldly asserts that “[as]
soon as [DHS] saw [his] name at the top of a civil service hiring list, it immediately
canceled the job announcement and created a new announcement that imposed a new
criteria that [it] used to target [Mr. Donahue] from exclusion for employment . . . .”
Donahue Reply Br. at 16-17. However, the Commission rejected this claim, finding
“no credible evidence” in the record that DHS closed the civil service list for the
April 2018 position to avoid hiring him. Comm’n Adjudication, 2/21/20, at 12.
More importantly, although Mr. Donahue’s name appeared on one of the civil
8
service lists for the April 2018 position, see N.T., 1/24/19, Ex. AP-1, the record
contains no evidence that Mr. Donahue actually applied for that position.
Next, Mr. Donahue argues that DHS’s use of county hiring preferences is
discriminatory because it excludes eligible candidates based solely on their county
of residence. Donahue Br. at 36. According to Mr. Donahue, county preference is
merely an internal “state agency policy” that is not authorized by statute. Donahue
Br. at 3, 6, 11-13; see also R. Item No. 3 (wherein Mr. Donahue argued before the
Commission that “county preference” is “an illegal non-statutory wheel that has
been repeatedly reinvented by state agencies to attempt to game the hiring system
based on non-merit factors”). We disagree.
Contrary to Mr. Donahue’s contention, county residency restrictions for state
civil service jobs were expressly authorized by Section 501 of the former Civil
Service Act, which stated: “Persons applying for positions in the classified service
shall be citizens of the United States and residents of the Commonwealth and where
applicable [of] the administrative district.” Formerly 71 P.S. §741.501 (emphasis
added). In interpreting this provision, this Court has stated that “Section 501 [of the
former Civil Service Act] grant[ed] to the Commission the discretion to establish the
requirement that appointees be residents of the district wherein the appointment is
made.” Humphreys v. State Civ. Serv. Comm’n, 301 A.2d 400, 404 (Pa. Cmwlth.
1973) (en banc) (emphasis added); see also Cambria Cnty. Mental Health/Mental
Retardation v. State Civ. Serv. Comm’n (Cotton), 756 A.2d 103, 107 (Pa. Cmwlth.
2000) (recognizing that the Commission’s manual provides that “an appointing
authority, in appointing eligible[] [candidates] from a certification [list] giving
preference to county residents, must appoint available residents [of the county]
before appointing non-residents”) (emphasis added).
9
The Commission’s duly promulgated regulations also expressly authorize the
use of county residency requirements, as follows:
The Director [of the Commission], upon submission by an appointing
authority of satisfactory justification, may limit certification for
appointment or promotion to eligibles who are residents of a county or
other administrative district. The limitations will not be imposed for a
class for which residence in this Commonwealth has been waived.
4 Pa. Code § 95.2(b)(2) (emphasis added); see Buffalo Twp. v. Jones, 778 A.2d 1269,
1276 n.8 (Pa. Cmwlth. 2001) (stating that this Court must “defer to [an] agency’s
interpretation of [a] statute and its own regulations”).
These provisions do not conflict with the Veterans’ Preference Act. Section
501 of the former Civil Service Act and its regulations permit an appointing
authority to restrict the certified list of eligibles for a job position to a particular
administrative district when requested by the appointing authority. See formerly 71
P.S. § 741.501; 4 Pa. Code § 95.2(b)(2). Veterans’ preference applies when a
veteran’s name appears with the names of non-veterans on the same list of eligibles.
See 51 Pa. C.S. § 7104(b). Where, as here, a veteran does not appear on a certified
list of eligibles because he is not a resident of the requisite administrative district,
veterans’ preference does not apply. Therefore, the Commission correctly
concluded that “[v]eterans’ preference does not preclude the appointing authority
from imposing a residency hiring preference.” Comm’n Adjudication, 2/21/20, at
13.7
7
We also conclude that Mr. Donahue’s reliance on Kealy v. Pennsylvania Liquor Control
Board, 496 A.2d 80 (Pa. Cmwlth. 1985), is misplaced. In Kealy, the appellant resided in the county
where the state job vacancy existed, but he worked at a state liquor store in a different county. Id.
at 81. The appellant requested a transfer to the store in his county of residence and a promotion.
Id. On appeal, we held that the Pennsylvania Liquor Control Board (LCB) discriminated against
the appellant by applying a “county-of-vacancy” promotion preference in violation of Section
10
Finally, Mr. Donahue asserts that the Commission erred in crediting Mr.
Tomaselli’s testimony as to why DHS imposes a county residency requirement for
certain job positions. Donahue Br. at 27-28. Mr. Tomaselli testified that it is
“standard” practice for DHS to limit the candidates for positions in the Lackawanna
County Assistance Office to qualified individuals who reside in Lackawanna
County. N.T., 1/24/19, at 109; see id. at 114 (stating that there has “always been a
county[-]preferred list for hiring within the [county assistance offices]”). Mr.
Tomaselli explained that the job transition is often smoother when the hired
candidate has knowledge of the community he or she is serving. Id. at 109. Mr.
Tomaselli also testified that a person who resides within the county is more likely to
show up at work in inclement weather, which increases the stability of the workforce.
Id. Mr. Tomaselli further testified that imposing a county residency requirement
reduces employee turnover, because employees who reside farther away often
transfer to another position after they are trained. Id. at 109-10.
The Commission credited Mr. Tomaselli’s testimony, finding that DHS
“provided a legitimate, non-discriminatory explanation for not selecting [Mr.
Donahue] for appointment to the position of Income Maintenance Caseworker.”
905.1 of the former Civil Service Act. In reaching this conclusion, we explained that the “LCB[’s]
policy of providing county-of-vacancy employe[e]s with an absolute preference in promotions is
clearly not job related nor does it have any relation to either competency or ability.” Id. at 82(emphasis added). We further stated that the LCB’s county-of-vacancy promotion “policy flies in
the face of the intent of the [former Civil Service] Act which is that the concept of merit prevails
in the classified service.” Id.Kealy, however, did not involve or address the validity of a county-of-residence
requirement for appointment to a civil service position, which, as discussed above, is authorized
by both the former Civil Service Act and the Commission’s regulations. Furthermore, as DHS
noted in its post-hearing brief filed with the Commission, Kealy pre-dated the amendments to the
regulation at 4 Pa. Code § 95.2 authorizing the use of county-of-residence requirements. R. Item
No. 5 at 5 n.3.
11
Comm’n Adjudication, 2/21/20, at 15. Mr. Donahue presented no evidence at the
hearing to refute this testimony. It is well settled that “[t]he Commission is the sole
fact finder in civil service cases and has exclusive authority to assess witness
credibility and to resolve evidentiary conflicts,” and this Court “will not disturb the
Commission’s determinations regarding credibility or the weight of evidence.”
Bosnjak v. State Civ. Serv. Comm’n, 781 A.2d 1280, 1286 (Pa. Cmwlth. 2001). We
conclude that the Commission’s findings are supported by substantial evidence of
record.8
Conclusion
We conclude that Mr. Donahue failed to establish that DHS violated the
Veterans’ Preference Act or discriminated against him by not selecting him for either
the April 2018 or the July 2018 position. There was no evidence that Mr. Donahue
applied for the April 2018 position before it was closed. The July 2018 position was
open to candidates from Lackawanna County only. Because Mr. Donahue is not a
Lackawanna County resident, his name did not appear on the certified list of eligibles
8
In his reply brief, Mr. Donahue also argues that the Commission erred in accepting Mr.
Tomaselli’s “expert” testimony regarding “cultural diversity, weather, . . . the ability of people to
function in differing cultural and inclement weather environments based on their county of origin,”
and “the ability and/or inability of people to drive to work in the snow based on their county of
origin.” Donahue Reply Br. at 6; see also Donahue Br. at 29-30. We reject this claim. First, Mr.
Tomaselli was neither offered nor accepted as an expert witness. Second, Mr. Donahue did not
object to Mr. Tomaselli’s testimony at that time of the hearing, so he has waived this claim.
Furthermore, in support of these assertions, Mr. Donahue appends to his brief a number of
documents purportedly demonstrating the weather patterns and the racial and cultural composition
of Lackawanna County. However, this Court cannot consider evidence on appeal that was not part
of the record before the Commission. See Pa. Tpk. Comm’n v. Unemployment Comp. Bd. of Rev.,
991 A.2d 971, 974 (Pa. Cmwlth. 2009); Pryor v. Workers’ Comp. Appeal Bd. (Colin Serv. Sys.),
923 A.2d 1197, 1201 (Pa. Cmwlth. 2006); see also 2 Pa. C.S. § 704 (“The [appellate] court shall
hear the appeal . . . on the record certified by the Commonwealth agency . . . .”). Therefore, we
will not consider Mr. Donahue’s extra-record evidence.
12
from which DHS selected a candidate. Mr. Donahue also presented no credible
evidence that DHS imposed a county residency restriction to avoid hiring a veteran,
as the record shows that DHS considered a veteran who resides in Lackawanna
County for the July 2018 position. Finally, the use of county residency restrictions
in hiring is authorized by the former Civil Service Act and the Commission’s
regulations. For these reasons, we conclude that Mr. Donahue failed to establish a
prima facie case of discrimination. Accordingly, we affirm the Commission’s
Order.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean M. Donahue, :
Petitioner :
:
v. : No. 296 C.D. 2020
:
State Civil Service Commission :
(Department of Human Services), :
Respondent :
PER CURIAM
ORDER
AND NOW, this 22nd day of April, 2021, the Order of the State Civil Service
Commission, dated February 21, 2020, is hereby AFFIRMED.